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IN THE HIGH COURT OF RAJASTHAN AT JAIPUR BENCH
Mohammad Rafiq, Narendra Singh Dhaddha, JJ.
Kuldeep Singh Shekhawat – Appellant
Versus
Deeraj Kanwar – Respondent
D.B. Civil Miscellaneous Appeal No. 3692 of 2019
Decided On : 17-09-2019
Hindu Marriage Act, 1955 - Section 13B – Challenging – Decree of divorce - Mutual consent – Separation – Challenging order passed by the Family Court which thereby refused to register the application filed by the appellant under Section 13B of the Hindu Marriage Act, 1955 for obtaining a decree of divorce by mutual consent on the ground that the same has been filed before expiry of one year from the date of separation - Condition of living separately for a period of one year envisaged under Section 13B(1) is mandatory - There can be no quarrel with the proposition that this condition may be mandatory, but when the law itself has carved out exception to this mandate in proviso to Section 14(1) of the Act, that mandate would stand relaxed, if the Court, on given material, arrives at the satisfaction that the matter falls in either of two exceptional circumstances, envisaged in the proviso to Section 14(1) of the Act.
Facts of the Case:
Submitted that marriage of the appellant and the respondent was solemnized at Village Jyaani, Tehsil Jayal, District Nagaur, Jaipur. No child is born out of their wedlock. The appellant-husband and the respondent-wife filed an application under Section 13B of the Act before the Family Court stating therein that after marriage differences arose between them and it is not possible for the parties to live together. However, the Family Court vide impugned order has refused to entertain/register that application on the ground that the same has been filed before expiry of period of one year from the date of separation.
Finding of Court:
Considering that the Family Court, as the Court of first instance, has not applied its mind to the grounds now set up by the parties in application jointly filed before this Court under Section 14(1) of the Act, we instead of examining such plea, deem it appropriate to remit this matter to that Court. We make it clear that we have not expressed either way on such plea set up in the application directly filed before this Court. Liberty is granted to the appellant/parties to file detailed application under Section 14(1) of the Act before that Court. It would also be open for the parties to plead such further and additional grounds with specific instances or produce them in sealed cover, which may bring their case in either of the exceptional categories. If any such application is filed by the parties, the Family Court shall hear the parties either in the open Court or in camera proceedings and take appropriate view of the matter.
Result: Appeal allowed
JUDGMENT :
Mohammad Rafiq, J.
1. This appeal has been filed by the appellant-husband challenging order dated 20.07.2019 passed by the Family Court No. 1, Jaipur (for short 'the Family Court'), which thereby refused to register the application filed by the appellant under Section 13B of the Hindu Marriage Act, 1955 (for short 'the Act') for obtaining a decree of divorce by mutual consent on the ground that the same has been filed before expiry of one year from the date of separation.
2. Mr. Akhil Simlote, learned counsel for the appellant submitted that marriage of the appellant and the respondent was solemnized on 08.02.2019 at Village Jyaani, Tehsil Jayal, District Nagaur, Jaipur. No child is born out of their wedlock. The appellant-husband and the respondent-wife filed an application under Section 13B of the Act before the Family Court stating therein that after marriage differences arose between them and it is not possible for the parties to live together. However, the Family Court vide impugned order dated 20.07.2019 has refused to entertain/register that application on the ground that the same has been filed before expiry of period of one year from the date of separation.
3. When this matter was listed before this Court on 06.08.2019, the parties were present before the Court and prayed for grant of decree of divorce by mutual consent, which application has been dismissed by the Family Court as premature. The respondent-wife being specifically asked as to whether any amount of permanent alimony has been agreed to be paid by the appellant-husband, contended that she does not want any permanent alimony but she wants decree of divorce by mutual consent. The matter was deferred to be listed on 19.08.2019. The parties again appeared before this Court on 19.08.2019 and expressed the same desire. The matter was ordered to be listed on 21.08.2019 and then on 29.08.2019. Finally the arguments were heard in the matter on 30.08.2019. In the meantime, joint application under Section 14(1) of the Act was filed by the parties on 20.08.2019, which reads as under:
2. That the appellant and the respondent got married on 08.02.2019 by Hindu rituals at Village Jyaani, Tehsil Jayal, District Nagaur (Raj.). The marriage of the parties was not as per their choice but it was under the pressure of both the families. After the marriage the parties have not lived as husband and wife for even a single day and the marriage has not been consummated. Soon after the marriage differences between the appellant and respondents started and they developed to the extent that it has become impossible for the parties to live together.
3. That in view of this fact it is not possible for the parties to live together and the consummation of the marriage has not taken place as the appellant and respondents were living separately since 09.03.2009.
4. That the applicant and respondents both on becoming sure that they cannot live together decided to separate and select their life partner of their own choice. Parties with the consent of each other started to search for the same and fortunately enough they have been able to find out the same.
5. That if the statutory period is not waived, there is possibility that the relations between the parties will become more wore and at present they are cooperating each other which may not be possible with passage of time.
6. That the parties have already searched their new life partners and the would be new partners are not ready to wait as such there is every hope that with passing of time pa
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